1984 (1) TMI 344 - HC - Indian Laws

Summary

Issues:
1. Setting aside an ex parte decree based on service of notice.
2. Validity of filing a regular appeal after failing to set aside an ex parte decree.

Analysis:

1. The plaintiff filed a suit for possession of agricultural land against the legal representatives of the previous owners, claiming that the land was sold to them fraudulently. An ex parte decree was passed in favor of the plaintiff as the second set of vendees did not appear in the suit. The second set of vendees later filed an application to set aside the ex parte decree, which was dismissed in default. However, on appeal, the Additional District Judge found that the second set of vendees were not properly served, leading to the ex parte proceedings being declared illegal. The matter was remitted back to the trial court for fresh decision.

2. In the subsequent appeal, the plaintiff argued that the second set of vendees could not file a regular appeal after failing to set aside the ex parte decree through an application under Order 9, Rule 13 of the Civil Procedure Code. Citing legal precedents, the plaintiff contended that once an application under Order 9, Rule 13 failed, a regular appeal could not be filed. However, the counsel for the second set of vendees relied on a different legal precedent to support the appeal, arguing that if no determination under Order 9, Rule 13 takes place, the Appellate Court can review the service of notice and the validity of the ex parte proceedings.

3. The judge analyzed the legal arguments and distinguished the precedents cited by both parties. It was held that in this case, as the application under Order 9, Rule 13 was dismissed in default, there was no determination regarding proper service and the validity of the ex parte proceedings. Therefore, the judge concluded that the matter was rightly dealt with by the lower Appellate Court, which had the authority to review the service of notice and the legality of the ex parte proceedings.

4. No further arguments were raised on the merits of the lower Appellate Court's decision, and the judge found the appeal devoid of merit. Consequently, the appeal was dismissed with costs, and the parties were directed to appear before the trial court on a specified date.

5. The judgment concluded by dismissing the appeal and upholding the decision of the lower Appellate Court, emphasizing that the matter was rightly dealt with, given the circumstances of the case.